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July 25, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 109 BOP facilities and 17 RRCs

Currently positive-testing inmates: 516 (up from 473) Currently positive-testing staff: 473 (up from 439) Recovered inmates currently in the BOP: 49,657 (down from 49,723) Recovered staff: 13,271 (up from 13,242)


Institutions with the largest number of currently positive-testing inmates:

Phoenix FCI: 49 (up from 48)

Lompoc USP: 47 (unchanged)

Texarcana FCI: 40 (unchanged)

Institutions with the largest number of currently positive-testing staff:

Central Headquarters: 50 (up from 47)

Carswell FMC: 21 (unchanged)

Houston FDC: 20 (up from 18)

System-wide testing results: Presently, BOP has 140,600 federal inmates in BOP-managed institutions and 13,714 in community-based facilities. Today's stats: Completed tests: 128,703 (up from 128,704) Positive tests: 55,351 (up from 55,352)


Total vaccine doses administered: 325,126 (up from 324,998)


Case Note: Citing disparity between the sentence defendant has already served and the sentence he would likely receive if sentenced today, court grants compassionate release...


In U.S. v. Johnson, No. CR 02-310 (JDB), 2022 WL 2866722 (D.D.C. July 21, 2022) the court, after considering "all the facts of defendant's case—including the disparity between the sentence he has already served and the sentence he would likely receive if sentenced today— agrees that he has demonstrated extraordinary and compelling reasons warranting his release, explaining: "In Winstead, the D.C. Circuit held that attempted distribution of controlled substances does not qualify as a “controlled substance offense” for the purpose of determining whether a defendant is a career offender. 890 F.3d at 1091 (“Section 4B1.2(b) presents a very detailed ‘definition’ of controlled substance offense that clearly excludes inchoate offenses.”); see also United States v. Campbell, 22 F.4th 438, 442–43 (4th Cir. 2022) (noting circuit split on issue). Without the career offender enhancement, the total offense level for Johnson's count one conviction would have remained at 24,12 see PSR ¶¶ 32–33, and the guideline range of incarceration would have been 100 to 125 months, see 2002 USSG § 5A. Hence, even with the mandatory 60-month consecutive sentence for Johnson's count two conviction, his total guideline range of imprisonment would have been 160 to 185 months (or 13 years and four months to 15 years and five months). Mot. at 14. Johnson has served over 20 years as of the date of this Memorandum Opinion. Sentence Monitoring Computation Data at 3.

Johnson does not contend that the legal changes that have occurred since his sentencing are retroactive. See Reply at 2–3 (describing the issue as “irrelevant”).13 The government argues at length that because these legal changes are not retroactive, they cannot support granting Johnson's motion. Opp'n at 17–25 (“[Johnson]’s claim that he should be released in light of Winstead has no merit because the decision is not retroactive and, in any event, such a claim is not properly presented in a compassionate-release motion.”). For the reasons outlined in the prior section, the Court disagrees with the government. Nonretroactive changes in law, including the Winstead decision, can be relevant when deciding whether there are extraordinary and compelling reasons to reduce a defendant's sentence, and hence are relevant in this case.

The government argues in the alternative that nonretroactive changes in law may be considered only when deciding whether the factors outlined at § 3553(a) support reducing the defendant's sentence. Opp'n at 25 n.17. But the government's motion does not explain why nonretroactive changes in law can be relevant at that stage of the compassionate release inquiry but not when determining whether there are extraordinary and compelling reasons....The Court accordingly adheres to its conclusion that it may consider nonretroactive changes in law, including Winstead, when deciding whether extraordinary and compelling reasons warrant reducing Johnson's sentence. Indeed, when confronted with a similar motion, Judge Chutkan held that Winstead, “given its significant bearing on [the defendant's] sentence, is itself an extraordinary and compelling reason to reduce his sentence.” Order at 3, United States v. Smith, No. 14-cr-189 (TSC) (D.D.C. May 14, 2020), ECF No. 76 (emphasis added). Johnson's argument is even stronger than the defendant's argument in Smith since the sentencing guidelines were not mandatory at the time of that defendant's sentencing and he had already received a sentence below the guideline range. See id. at 1, 3 (noting the defendant was sentenced to 100 months of incarceration even though the guideline range with the career offender enhancement was 188 to 235 months). In this case, by contrast, Johnson's career-offender designation is directly responsible for more than eleven years of his twenty-seven-year sentence. Hence, like Judge Chutkan in Smith, this Court concludes that the disparity between the sentence Johnson received and the sentence he would likely receive if sentenced today weighs strongly in favor of finding that extraordinary and compelling reasons warrant reducing his sentence.14

B. Johnson's Physical Conditions and the Threat Posed by COVID-19 *10 Johnson also argues that his physical conditions support finding that there are extraordinary and compelling reasons to reduce his sentence, particularly given the COVID-19 pandemic. See Mot. at 21–27. He primarily relies on the briefing in support of his prior compassionate release motion to outline his health conditions, see id. at 5, 7, 21–25, but his current motion mentions that he suffers from “hypertension, high cholesterol, and farsightedness,” id. at 5; see also First Compassionate Release Mot. at 5, 22–23 (further explaining Johnson's health conditions). Johnson highlights his age (61) and race (Black) as risk factors that increase his susceptibility to COVID-19. Mot. at 26–27; see also COVID-19 Risks and Vaccine Information for Older Adults, CDC (Aug. 4, 2021), available at https://www.cdc.gov/aging/covid19/covid19-older-adults.html (noting “[t]he risk [of severe illness from COVID] increases for people in their 50s and increases in 60s”); Risk for COVID-19 Infection, Hospitalization, and Death By Race/Ethnicity, CDC (June 24, 2022), available at https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html (noting that African Americans have higher rates of hospitalization and death from COVID-19 than White, non-Hispanic individuals). The government's opposition focuses on the fact that “Johnson [has] received his first and second shots of the Moderna vaccine ... as well as a booster shot.” Opp'n at 26; see also Sealed Medical Records [ECF No. 89]. The government cites a litany of cases, including many from this Court, denying compassionate release motions filed by vaccinated individuals. Opp'n at 26–28; see also United States v. Edwards, Crim. A. No. 03-234 (JDB), 2021 WL 3128870, at *3 (D.D.C. July 22, 2021) (“[S]everal courts in this District have recognized that vaccines reduce the risk that inmates with underlying conditions face from COVID-19.”), aff'd, No. 21-3062, 2022 WL 1769144 (D.C. Cir. June 1, 2022) (per curiam); Morales, 2021 WL 4622461, at *6 (concluding that the “substantial protection against COVID [conveyed by one dose of the Johnson and Johnson vaccine]—and especially against life-threatening courses of the disease—seriously undermine[d the defendant's] purported ‘extraordinary and compelling reason’ for release”). The Court has fully analyzed Johnson's physical conditions and susceptibility to COVID-19 in two prior opinions, Johnson IV, 2021 WL 3737681, at *4–7; Johnson II, 2020 WL 5518360, at *2–3, and the discussion here will be brief. Once again, the Court concludes that Johnson's health concerns are not weighty enough to constitute extraordinary and compelling reasons for his release.... Hence, the Court concludes that particularly given his age and underlying health conditions, Johnson's COVID-19 related arguments for release provide some, albeit meager, support for finding that extraordinary and compelling reasons warrant releasing Johnson from incarceration.

C. Johnson's Rehabilitation Johnson's final argument for finding extraordinary and compelling reasons is that his “rehabilitation has been truly extraordinary.” Mot. at 27. He explains that “[f]or the past more than 16 years[,] he has had no disciplinary incidents.” Id. He also reports that he has had only “one minor disciplinary report for being absent from an assignment” during his roughly two decades of incarceration, and that this incident occurred in 2005. Id.; see also First Compassionate Release Mot. at 30–31 (detailing courses Johnson completed while incarcerated). *12 The government does not dispute Johnson's description of his disciplinary record. Opp'n at 31 (“We note that Johnson has incurred only one infraction and completed a number of courses while he has been incarcerated. The government appreciates that Johnson has avoided trouble while in prison and attempted to turn his life around.”). But the government argues that “the law makes clear that Johnson's rehabilitation efforts do not, on their own, amount to an extraordinary and compelling reason for release.” Opp'n at 29. The government is correct; Johnson's rehabilitation “alone shall not be considered an extraordinary and compelling reason” for release. 28 U.S.C. § 994(t). Again, however, Johnson does not ask for release solely due to his rehabilitation, and his rehabilitation is an important factor in the Court's analysis. See United States v. Brown, 457 F. Supp. 3d 691, 701 (S.D. Iowa 2020) (“For the word ‘alone’ to do any work—as it must—that means courts can consider rehabilitation as part of a compassionate release motion.”); United States v. Torres, 464 F. Supp. 3d 651, 661 (S.D.N.Y. 2020) (“Given the clarity of the statutory text, the Court holds that rehabilitation is relevant to whether there are extraordinary and compelling reasons for a sentence reduction.”). Though Johnson's motion does not contain any letters from prison officials, a source that courts have considered persuasive when judging a defendant's rehabilitation, e.g., Lawson, 2022 WL 2663887, at *14, his record while incarcerated is nonetheless very impressive and a factor that weighs strongly in favor of granting his motion, see United States v. Fennell, 570 F. Supp. 3d 357, 364 (W.D. Va. 2021) (concluding that defendant's rehabilitation weighed in favor of granting his compassionate release motion in part because “[p]rison records indicate that [defendant] ha[d] incurred only one minor disciplinary infraction during his current term of incarceration and that he ha[d] maintained a clear disciplinary record for over five years”); United States v. Stephenson, 461 F. Supp. 3d 864, 873 (S.D. Iowa 2020) (granting compassionate release motion in part because defendant “maintained a clear disciplinary record [over fifteen years of incarceration], no minor feat in any prison”).

D. Final Balancing Taken together, Johnson's three arguments establish that “extraordinary and compelling reasons warrant” reducing his sentence. 18 U.S.C. § 3582(c)(1)(A)(i). Johnson has been incarcerated for several years longer than he would be if sentenced today, his rehabilitation while incarcerated is extremely impressive, and he is currently incarcerated during a global pandemic. Although the Court need not find that any one of these factors is sufficient standing alone, the Court concludes that, considered together, Johnson's arguments are sufficiently persuasive to clear the hurdle in § 3582(c)(1)(A)(i). Cf. Lawson, 2022 WL 2663887, at *16 (“[A] collection of reasons each falling short of ‘extraordinary and compelling’ can, if considered together, still justify compassionate release.”)...."

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has announced one new COVID-related inmate death, that of FCI Petersburg Medium inmate Earl Johnson, 50, on January 18, 2022, Total COVID-related inmate deaths now stand at 302. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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